#### CHESTER D. TURNER et al. v. SOUTHEASTERN GRAIN AND LIVESTOCK COMPANY et al.

(Filed 21 April, 1920.)

1. Evidence — Admission—Title to Lands — Judgments—Appeal and Error.

Where, during the admission of evidence in the course of the trial involving title to several tracts of land, the plaintiff solemnly admits the title in the defendant to one of the tracts, and makes no claim that it was through inadvertence or mistake, or that it was not in accordance with the truth, he will be bound by his admission, and his exception to the judgment upon the ground that the trial judge had not permitted him to withdraw his admission, will not be sustained on appeal.

2. Pleadings — Counterclaim—Independent Action — Lands—Title—Possession — Equity.

Where the plaintiff alleges the ownership of several tracts of land in controversy and the defendant alleges that he is the owner and in possession thereof, without further allegations entitling him to any equitable relief, or claim amounting to a cloud upon his title, the answer does not raise a counterclaim requiring the plaintiff to reply, or entitling the defendant to judgment for plaintiff’s failure to have done so, the test of a counterclaim being whether the allegations are sufficient for the defendant to have maintained an independent action thereon.

Appeal by botb parties from Connor, Jat tbe February Term, 1920, of CRAVEN.

Tbis is an action to recover land.

Tbe plaintiffs filed tbeir complaint alleging tbe ownership of tbe land and tbe defendants filed answer denying tbe material allegations of tbe complaint, and pleading as a counterclaim tbe following:

“24. Tbat tbey were at tbe time of bringing tbis action, and are now, tbe owners in fee simple and in possession of tbe land claimed by tbe plaintiffs, and tbey plead said ownership as a counterclaim; wherefore, defendants demand judgment tbat tbey go without day as to plaintiffs’ claim, and tbat tbey be adjudged tbe owners in fee simple of tbe lands claimed by plaintiffs, and that tbey recover cost and have general relief.”

*458Tbe plaintiffs failed to file a reply to tbe answer, and tbe defendants moved for judgment upon tbe alleged counterclaim for want of a reply, wbicb was refused, and tbe defendants excepted.

During tbe progress of tbe introduction of evidence tbe plaintiff solemnly admitted in open court that tbe defendants were tbe owners in fee simple and in possession of tbe home tract No. 1 described in tbe deed, a certified copy of wbicb was tben and there introduced by tbe plaintiffs from "Win. M. Jones, surviving executor of Lawrence J. Haugbton, deceased, and others, to C. E. Eoy, J. W. Stewart, T. A. TTzzell, and "W\ S. Chadwick, dated 15 October, 1912, and registered in tbe office of tbe register of deeds of Jones County, North Carolina, in Book 60, page 396, and particularly described in said deed, containing 7,850 acres, more or less. And said admission, was taken down in a very short form by tbe official court stenographer at tbe time tbe same was made a solemn admission of tbe plaintiffs in tbe course of tbe trial, and in tbe judgment entered it was adjudged on said admission and tbe reference to tbe same matter in tbe consolidated complaint that tbe defendants bad title to and were in possession of said tract of land to wbicb said admission referred.

During said term of tbe court, and some days after tbe trial of said cause in which bis Honor bad directed that a judgment as of nonsuit be drawn as to all tbe remaining matters involved in plaintiff’s complaint, plaintiffs in open court gave a general notice of appeal, and bad entry made affecting tbe same. Tbe court bad up till this time held open tbe matter of signing tbe judgment at tbe request of tbe plaintiffs, so that they might consider tbe matter involved and confer with such counsel as they saw fit. Later during tbe term bis Honor signed tbe judgment set out in tbe record and also signed tbe statement of tbe case on appeal of defendants set out in tbe record of defendants’ appeal.

At said time plaintiffs’ counsel appeared in open court and stated that be wished all of bis entries as to tbe appeal and notice of appeal that bad been entered stricken out, and it was so ordered, and stated that be would rely upon tbe notice of appeal in writing to be served by him, and that be did not desire to appeal from so much of tbe judgment as granted a nonsuit against tbe plaintiffs, but only from that part adjudging tbe defendants tbe owners of said tract No. 1 in said deed from ¥m. M. Jones, executor, and others, to O. E. Foy, J. W. Stewart, T. A. Uzzell,' and W. S. Chadwick, and that be tben there desired to repudiate said admission. His Honor later refused to permit him to repudiate it, and entered up judgment.

It was adjudged by tbe court that tbe defendants were tbe owners of tbe land covered by admissions of tbe plaintiffs, and that tbe plaintiffs be nonsuited as to tbe remainder of tbe land.

*459Both the plaintiffs and the defendants appealed from the judgment.

The plaintiffs assign as error his Honor’s rendering judgment in favor of the defendants for the Y,850-acre, more or less, tract of land described in exception 1 above.

The defendants assign as error the failure to enter judgment in their behalf for all of the land described in the complaint, because of the failure of the plaintiffs to file a reply.

Frank Nash and C. B. Turner for plaintiffs.

B. L. Ward, T. B. Warren, Guion & Guion, Moore & Bunn, and Ward & Ward for defendants.

Allen, J.

The plaintiffs do not note any exception in the record to the refusal of his Honor to strike out the admission solemnly made, and the only question therefore presented by their appeal is whether the admission, which it is not alleged was inadvertently made, or by mistake, or that it is not according to the truth, is sufficient to sustain the judgment.

It has been long recognized with us that admissions made by counsel during the progress of a cause, and to facilitate the trial, are binding upon the parties, and if this were not so, much time would be consumed in proving facts about which there is no controversy.

It not infrequently happens in the course of an action to try the title to land that the plaintiff introduces a great number of deeds in his chain of title in which the descriptions are not always identical, and that the defendant’s counsel, knowing that the deeds cover the land, do not require proof of identification, and in this way much time can be saved, and so it is in the trial of other actions.

In Fleming v. R. R., 115 N. C., 693, the Court says of admissions equally as important as the one made in this case:

> “When two of the counsel for the defendant admitted in the progress of the trial, on behalf of their client, that the plaintiffs owned and were possessed of the land, it was not error in the court to instruct the jury to respond in the affirmative to the first issue, involving the question of title and possession. In the same way, counsel were bound by their admission that 'Great Swamp was a natural watercourse and drain for said land,’ and were not at liberty, after the trial, to except to the instruction to the jury to write the response, in accordance with their express agreement.

> “The same principle applies to the consent of counsel given 'in open court, at the close of the charge, that the jury need not respond to each amount of damage separately, if more than one cause of damage was found to exist, but that they might find the aggregate amount for all causes, and respond only to the ninth issue on that question.’ ”

*460Again, in Lumber Co. v. Lumber Co., 137 N. C., 438: “Parties undoubtedly have tbe right to make agreements and admissions in tbe course of judicial proceedings, especially wben tbey are solemnly made and entered into and are committed to writing, and wben, too, tbey bear directly upon tbe matters involved in tbe suit. Sucb agreements and admissions are of frequent occurrence and of great value, as tbey dispense witb proof and save time in tbe trial of causes. Tbe courts recognize and enforce tbem, as substitutes for legal proof, and there is no good reason why tbey should not. ‘Admissions of attorneys bind their clients in all matters relating to tbe progress and trial of tbe cause, and are, in general, conclusive.’ 1 Greenleaf on Ev., 186. ‘Unless a clear case of mistake is made out, entitling tbe party to relief, be is held to tbe admission, which tbe court will proceed to act upon, not as tbe truth in tbe abstract, but as a formula for tbe solution of tbe particular problem before it, namely, tbe case in judgment, without injury to tbe general administration of justice.’ Ibid., 206: Wharton on Ev., 1184, 1185, and 1186.”

We are, therefore, of opinion that there is no error on tbe plaintiffs’ appeal.

Tbe defendants’ appeal presents tbe simple question as to whether tbe allegations of tbe defendant in tbe answer that tbey are tbe owners of tbe land in controversy and in possession thereof constitute a counterclaim, because if it is a counterclaim it was tbe duty of tbe plaintiffs to file a reply thereto, and upon failure to do so tbe defendants would be entitled to judgment for want of a reply.

“Tbe criterion for determining whether a defense set up can be maintained as a counterclaim is to see if the answer sets up a cause of action upon which the defendant might have sustained a suit against the plaintiff; and if it does, then sucb cause of action is a counterclaim; and it must disclose sucb a state of facts as would entitle the defendant to bis action, as if be was plaintiff in the prosecution of bis suit, and should contain the substance of a complaint, and, like it, contain a plain and concise statement of the facts constituting a cause of action.” Garrett v. Love, 89 N. C., 207.

Again, in Askew v. Koonce, 118 N. C., 531, it is said: “Unless a defendant has some matter existing in bis favor and against tbe plaintiff, on which be could maintain an independent action, sucb claim would not be a counterclaim.”

Tested by this rule, we are of opinion that tbe defendants have not alleged a counterclaim.

If they bad instituted an independent action alleging simply that they were the owners of the land and in possession it would have been the duty of the court to enter judgment of nonsuit, because if they owned the *461land and were in possession, nothing else appearing, they bad no cause of complaint.

The case would be different if, as in Roper Lumber Co. v. Wallace, 93 N. C., 23, and in Yellowday v. Perkinson, 167 N. C., 147, there were allegations entitling the defendants to equitable relief, or if it had been alleged that the plaintiffs were setting up a claim which amounted to a cloud upon their title, but none of these allegations appear in the answer, and as they are relying upon the letter of the law they must abide by it.

Affirmed on both appeals.

The plaintiffs will pay the costs on the plaintiffs’ appeal, and the. defendants the costs on the defendants’ appeal.